Court File and Parties

COURT FILE NO.: 4726/14 (Milton) DATE: 2023 10 26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THE TORONTO-DOMINION BANK, Plaintiff - and - BALWINDERJIT SINGH also known as BALWINDER JIT SINGH, Defendant

BEFORE: Associate Justice Todd Robinson

COUNSEL: D. Freudman, for the defendant (moving party) A. Maio, for the plaintiff

HEARD: July 26, 2023 (by videoconference)

REASONS FOR DECISION (Set Aside Default Judgment)

[1] Balwinderjit Singh brings this motion seeking to set aside the default judgment against him issued by the registrar on February 11, 2015 and to cease all ongoing enforcement steps being taken by The Toronto-Dominion Bank (“TD Bank”). The alleged debt giving rise to the default judgment dates back to 2014, stemming from use of credit card issued by TD Bank to Mr. The alleged debt giving rise to the default judgment dates back to 2014, stemming from use of a credit card issued by TD Bank to Mr. Singh. TD Bank opposed the motion.

[2] Mr. Singh has not satisfied me that it is in the interests of justice to set aside the default judgment. I am accordingly dismissing the motion.

Analysis

[3] Subrule 19.08(1) of the Rules of Civil Procedure, RSO 1990, Reg 194 (the “Rules”) authorizes the court to set aside or vary a default judgment “on such terms as are just”. Whether or not to set aside or vary a default judgment is a discretionary decision. When exercising that discretion, there are no rigid rules. The court must consider the particular circumstances of each case to decide whether it is just to relieve the defendant from the consequences of their default: Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194 at paras. 50 and 55.

[4] In Mountain View Farms Ltd., at paras. 48-49, the Court of Appeal articulated five factors that should be considered on motions to set aside a default judgment. They are as follows:

(a) whether the motion was brought promptly after the defendant learned of the default judgment;

(b) whether there is a plausible excuse or explanation for the defendant’s default in complying with the Rules;

(c) whether the facts establish that the defendant has an arguable defence on the merits;

(d) the potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and

(e) the effect of any order the motion judge may make on the overall integrity of the administration of justice:

[5] Mr. Singh’s affidavit sets out that he was unaware of TD Bank’s statement of claim, judgment, or enforcement measures in this action until June 2022, when he received a letter from TD Bank’s lawyers. Mr. Singh states that he received that letter, which is dated June 9, 2022, when he checked his mail on June 29, 2022.

[6] It appears that Mr. Singh’s address has been the same since at least 2014. Nevertheless, Mr. Singh’s evidence is that he received none of the letters sent by TD Bank and its lawyers, including the mailed copy of the statement of claim, between 2014 and the letter in June 2022. The following outlines correspondence sent to Mr. Singh:

(a) TD Bank sent a demand letter dated July 4, 2014 to the Woodbridge address. Mr. Singh says he never received it.

(b) TD Bank obtained an order for substituted service on November 20, 2014, authorizing service of the statement of claim by mail to the Woodbridge address. An affidavit of service confirms that service was effected by regular mail sent on January 14, 2015. Mr. Singh says he did not receive the statement of claim.

(c) TD Bank sent a letter on August 13, 2015, which advised about the judgment and the writ of seizure and sale that had been filed with the Sheriff. TD Bank requested that Mr. Singh make arrangements to pay the debt. Mr. Singh says he did not receive this letter.

(d) TD Bank’s lawyers sent a letter on January 24, 2020, stated to have been hand delivered. The letter notes both the judgment and the writ of seizure and sale. It also advised that TD Bank intended to direct the Sheriff to sell the Woodbridge property by way of auction. Mr. Singh says he did not receive this letter.

[7] Mr. Singh’s evidence is that, after receiving the letter dated June 9, 2022, he contacted TD Bank and advised his son of the situation. It is undisputed that Mr. Singh’s son had settlement discussions with TD Bank’s lawyers. Mr. Singh says that he retained counsel when it became apparent to him that a settlement was not achievable. This motion was thereafter brought.

[8] Part of Mr. Singh’s explanation for why he may not have received the letters is that he was working as a long-haul truck driver between 2009 and 2017, at which point he developed health issues forcing him to end his driving career. He says that his treatment required him to return to India “for several months at a time”. Mr. Singh’s affidavit evidence is that, between 2009 and 2022, he was “frequently outside the country for prolonged durations.” He also submits in his affidavit, essentially, that it defies common sense for him to have simply ignored the judgment if he had known about it.

[9] I have two main concerns with Mr. Singh’s evidence. First, Mr. Singh’s evidence is general, self-serving, and uncorroborated by any other evidence. He refers generally to being on long-haul truck driving assignments and developing unparticularized “health issues” that required him to travel back to India for unexplained reasons, seemingly on a regular basis, between 2017 and 2022. No specifics are provided. Second, his evidence on lack of knowledge has been directly challenged by the responding affidavit evidence. The questions raised by that evidence have not been answered.

[10] TD Bank’s responding evidence on this motion is from a lawyer with the firm representing TD Bank. That affidavit outlines direct communications with Mr. Singh in June 2017 by a legal assistant, with the affiant lawyer having telephoned Mr. Singh and left a voicemail message without response. The affidavit further outlines communications by Mr. Singh and his spouse, Sabrjit Singh, about TD Bank’s garnishments of their joint accounts. There is no dispute that TD Bank did, in fact, successfully garnish funds from their bank account in 2017, with payment made to TD Bank by the Sheriff in 2018.

[11] Significantly, the responding affidavit outlines discussions between the affiant lawyer himself and Mr. Singh’s son in November 2021, in which Mr. Singh’s son is said to have been “looking to negotiate a settlement on behalf of his father relating to the debt.” The affiant lawyer indicates that he spoke with Mr. Singh, who authorized discussing details of the matter with his son. Mr. Singh’s son is said to have advised that he would be sending a settlement proposal for TD Bank’s consideration, which was never received.

[12] Consistent with Mr. Singh’s evidence, his son is said to have later contacted the firm again in June 2022 to discuss settlement. The responding affidavit outlines that a settlement was agreed with Mr. Singh’s son in December 2022, and that minutes of settlement were subsequently emailed to him. Mr. Singh’s son is said to have confirmed in February 2023 that he would arrange for the settlement payment to be dropped off by the end of March, which did not occur. Although not in the materials, an email is said to have been sent to Mr. Singh’s son confirming that the settlement had been breached. Mr. Singh’s son sent an email, which is in the record, advising that “we have retained counsel.”

[13] TD Bank’s responding evidence has quite effectively challenged Mr. Singh’s explanation for failing to defend this action and the plausibility of his excuse. The responding affidavit supports actual knowledge or at least reasonable notice of a judgment well prior to June 2022. Despite that evidence, Mr. Singh opted not to tender any reply evidence seeking to buttress his own affidavit evidence and did not cross-examine on the responding affidavit. I was directed to nothing in Mr. Singh’s affidavit saying that neither he nor anyone on his behalf spoke with TD Bank’s lawyers prior to June 2022. No evidence has been tendered by Mr. Singh’s spouse or son, despite the evidence that they were communicating with TD Bank’s lawyers. That evidence is uncontested.

[14] In the case of Mr. Singh’s son, the uncontested evidence before me is that he was aware of the debt in late 2021 and attempting to settle it on his father’s behalf. There is further uncontested evidence that Mr. Singh’s son was speaking directly with the affiant lawyer following express authorization given to that lawyer directly by Mr. Singh himself. Although Mr. Singh has fairly challenged other aspects of TD Bank’s evidence as hearsay, the lawyer’s own evidence on his personal discussions with Mr. Singh and Mr. Singh’s son in November 2021 is not hearsay.

[15] Mr. Singh submits that he has an arguable defence on the merits, namely that the accrued credit card debt leading up to 2014 arose from unauthorized fraudulent transactions that had been reported to TD Bank’s fraud department. Mr. Singh says that he was specifically advised that the transactions would be reversed and that he would be contacted if any issues arose. Since he never heard from TD Bank, he assumed that TD Bank had, in fact, reversed the transactions. Mr. Singh’s position is that TD Bank breached the cardholder agreement by failing to reverse the transactions.

[16] In showing a defence on the merits, Mr. Singh need not show that his defence will inevitably succeed. The defendant must only show that his defence has an air of reality: Mountain View Farms Ltd., supra at para. 51. In my view, Mr. Singh has not met his onus. There is no air of reality to the proposed defence.

[17] TD Bank correctly points out that nothing in Mr. Singh’s affidavit or the draft defence provides any particulars of the alleged unauthorized fraudulent transactions. There is nothing before me on how many and which transactions were allegedly fraudulent and the quantum of those transactions. Per TD Bank’s demand letter dated July 4, 2014, which was sent prior to this action being commenced, the debt at the time was $37,924.69. Mr. Singh’s affidavit suggests, but does not expressly say, that the entirety of that liability results from unauthorized fraudulent transactions.

[18] On this motion, it is not appropriate for me to make any final determination on the merits of Mr. Singh’s proposed defence. However, in order to assess whether it has an air of reality, more is required that Mr. Singh’s bare and unsubstantiated allegations that the underlying debt arises from unauthorized fraudulent transactions. His evidence is too generic and non-specific. For example, he has not tendered his credit card statements to specifically identify and address what the allegedly fraudulent transactions were and why he is certain that neither he nor anyone on his behalf incurred those charges. I am simply unable to find that Mr. Singh’s unauthorized transaction defence is arguable on the limited and self-serving evidence provided.

[19] Since Mr. Singh has not satisfied me that his proposed defence has an air of reality, I am unconvinced by his arguments that maintaining the default judgment would be prejudicial or unfair. I also see no detrimental impact on the integrity of justice from maintaining the judgment in these circumstances.

[20] For the above reasons, I am dismissing Mr. Singh’s motion.

COSTS

[21] TD Bank seeks its partial indemnity costs of the motion in the amount of $3,212.60, including HST and disbursements. Mr. Singh’s costs outline supports a partial indemnity costs claim of $5,706.50. I see no basis to discount TD Bank’s costs claim. It is evidently within the reasonable expectations of Mr. Singh given his own costs outline.

Disposition

[22] Mr. Singh’s motion is hereby dismissed with costs payable to TD Bank by Mr. Singh fixed on a partial indemnity basis in the amount of $3,212.60, including HST and disbursements, payable forthwith. Order accordingly.

ASSOCIATE JUSTICE TODD ROBINSON DATE: October 26, 2023